I think I’ve finally recovered from my trip to Durban, South Africa, to attend the 47th meeting of ICANN (International Association of Assigned Names and Numbers – the organization that oversees the Internet’s domain name system and everything around it). After blogging from the belly of the beast, I now have the luxury of some perspective on the goings-on in Durban and the results of that meeting. Several important points came out of Durban and a few epiphanies along the way that are worth sharing.

  1. The “Name Clash” issue is significant and won’t go away. Issues regarding the “Security, Stability and Resiliency” (SSR) of the Internet came to the foreground at ICANN 47. One of ICANN’s core responsibilities is to maintain the “SSR” of the Internet. The Security and Stability Advisory Council (SSAC) is charged with giving the ICANN Board and staff advice on SSR concerns, and their advice was not pretty. The most significant issue the SSAC brought to light was the “Name Clash” issue – where proposed new gTLDs could conflict with the names of existing servers on private networks. For instance, the .corp new gTLD could conflict with a “.corp” server on your company’s network. An Internet traffic analysis shows that nearly every new gTLD could cause a name clash. The SSAC is a bunch of engineers, and their presentations can be dry – but the underlying gravity of this problem can’t be overestimated. These name clashes can create security holes into private networks and can disrupt legitimate communications traffic. Worse yet, a significant percentage of traffic could be VoIP (Voice over Internet Protocol) traffic – and these days, most phone traffic is VoIP traffic. After new gTLDs launch, will your next 911 call go through?
  2. Trademark Clearinghouse (TMCH) Issue #1: TM+50. The TMCH is still a work in progress. The greatest concern is when the newest feature of the TMCH – “TM+50+” – will be operational. TM+50 allows a registrant to add to the TMCH up to 50 “previously abused” variations on each registered mark. A “previously abused” string is a variation that has been the subject of a successful legal string. The TM+50 strings will trigger claims notices from the TMCH if a third party attempts to register that string in a new gTLD. New gTLDs cannot launch without TM+50 in place, with a fair amount of time to potential registrants.
  3. TMCH Issue #2: Where is everybody? There are very few registrations in the TMCH – barely more than 6,000. Obviously, this is a small fraction of all the registered trademarks in the world. This may be the result of a lack of publicity, lack of interest in TLDs, the weak “protections” offered by the TMCH, or merely deadline thinking. Whatever the reason, brandowners need to register any marks that they would hope to acquire as domain names in a Sunrise. And registering early has its advantages – you will not miss trademark claims notices, you will have time to work out issues and you will avoid the rush – which could tax the TMCH’s processing capacity (both technical and human). It’s worth noting that more than 50 percent of the early applications had issues that needed human intervention.
  4. GAC (Government Advisory Council) advice is still up in the air. After the GAC’s Beijing Communiqué came out with so many significant issues, there was hope that many of these issues would be resolved by Durban. However, this was not the case. While the GAC’s general safeguards were largely adopted by ICANN, the category-specific safeguards (which are holding up hundreds of applications) were not adopted, and ICANN declared them “not implementable.” These are still under discussion and many of them may not get resolved until ICANN 48 in Buenos Aires in November. The GAC spent more than seven hours debating potential advice on .wine and .vin, and was unable to come to resolution. For these reasons, the GAC’s Durban Communiqué primarily consisted of unfinished business. The GAC was able to come to one final decision in Durban, and it was not a positive one for trademark owners – the consensus objection to .amazon.
  5. .amazon is up the river without a paddle (for now). The GAC sent the ICANN Board a consensus objection to Amazon.com’s applications for .amazon and the Chinese and Japanese IDN variants. This was based on strong objections from the Amazonas region countries, helped by an abstention from the U.S. representative. While there appears to be no basis in international law for the GAC to assert that there are geographic rights in “Amazon” and that they trump Amazon.com’s trademark rights, the GAC doesn’t actually need a legal basis to object. It’s now up to the ICANN Board to accept or reject this “advice,” but the rules provide a “strong presumption” that ICANN will accept GAC advice. While there was much good GAC advice on other issues, I believe that this particular piece of GAC advice should and must be rejected by the ICANN Board. Not only is it wrong on the law, but it also sets a dangerous precedent. This may be amazon.com’s problem today, but it may be your problem tomorrow.
  6. Geographic names are a serious threat to trademark owners. The Durban Communiqué contained a troubling statement, encouraging greater protection for “terms with national, cultural, geographic and religious significance” in future rounds. Such protection is almost certainly going to come at the expense of trademark owners. .amazon seems to have emboldened elements of the GAC and foreshadows how this might evolve in practice, and it’s not a pretty sight. Adding protections for “national, cultural and religious” terms just makes matters worse. While the legal basis for such protections is dubious, politics may provide surprising traction for this movement. Meanwhile, the applicants for geographic TLDs (such as .london, .nyc and .berlin) are seeking additional protections and privileges for geographic, cultural and local terms (and for unregistered marks with local ties) in the current round in the GeoTLDs. ICANN has not reacted to these requests yet, but I believe that some will at least be put out for public comment.
  7. WHOIS may change for the better … and for the worse. An “expert working group” on a next generation WHOIS (to keep track of domain name registrant information) made several presentations in Durban. A central database, administered by ICANN, with a much higher degree of accuracy (no more claims that “Donald Duck” owns domains?) might seem like a good idea, and very helpful to IP rights holders and law enforcement in tracking down pirates, etc. But there’s a catch – the data will be disclosed for “permissible purposes only,” and then only to “authenticated requestors.” Thus, the days when one could take a casual look at WHOIS and possibly get helpful info on a registrant could soon be over. And zealous privacy advocates (a/k/a “privacy absolutists”) are trying to narrow the definitions of “purposes” and “requestors,” and strengthen safeguards so that the information request window may end up resembling the eye of a needle. Unfortunately, corporate and intellectual property interests have not brought their privacy expertise to the table with the same amount of zeal. Much greater attention from privacy pragmatists and privacy relativists will be needed to arrive at a balanced result in this critical area.
  8. The train keeps a rollin’ – but is it a runaway train? Through it all, ICANN keeps plugging away. ICANN is releasing Initial Evaluation results at a rate of nearly 100 per week. At this rate, all applications should be through IE by sometime in December. About 100 applications were withdrawn, and many appear to have been defensive registrations by brandowners, wanting to see if it made sense to maintain an application. At this point, taking withdrawals, GAC advice and “contention sets” (multiple applications for one TLD) into account, the maximum number of new gTLDs is 1,354. ICANN made much of the fact that four new gTLD applicants actually signed their Registry Agreements in a public ceremony – a watershed event to some. Based on ICANN’s current “hypothetical” timeline, the first Sunrise Periods could start in early October. However, so much needs to be done to create a safe and workable environment for the delegation of new gTLDs – and so much work to be done by each new gTLD applicant – that this seems either wildly optimistic or wildly irresponsible. Only time will tell.

Aside from the eight critical issues discussed above, I had a few little epiphanies that I now share:

  1. Power is power. Some say knowledge is power, and I don’t disagree. However, at a big, interminable meeting like ICANN, power is power – electrical power. Eyes sweep the floor, searching for extension cords and power strips. Power cords are constant companions. An eye on the battery indicator when access to power is unavailable. Finding out that South African plugs are a vestige of the old British Empire, with a 3-prong behemoth used only in rural Ireland and rural India (so they say; I haven’t been). Rejoicing at finding multi-prong power strips in the conference center. Keeping an external battery charged, just in case….
  2. Everyone has their own ICANN meeting. Each attendee is there for a different reason, with different agendas, different attitudes and different experiences. Some are there as idealistic participants in the multi-stakeholder process; others are hardened cynics. Some are there to participate in Internet Governance; others are there to get things done for clients. Some are veterans; others are newbies. Some are there because their business depends on it; others are there to keep ICANN from being solely a vehicle for domain name businesses. Some have multiple agendas; others have hidden agendas. Some don’t even care about the new gTLDs (there are other things happening in ICANN-land, shockingly enough). The corollary rule – be true to your ICANN meeting and try not to get sucked into someone else’s priorities. Just because a session or a meeting or an issue isn’t important to someone else, doesn’t mean it’s not important to you and others. In the end, my ICANN meeting was a mixture – some idealism, some cynicism; some ICANN-for-ICANN’s sake; some client issues; even some veteran moments and some newbie moments. By and large, I was true to my ICANN meeting, and therefore I count Durban as a success based on what I personally hoped to learn and accomplish on the trip.
  3. There is no right and wrong; different parties just have different interests. I heard this over dinner from someone who often stakes out positions quite different from my own. In spite of the divide, I found him to be an interesting table companion, and we had more in common than I would have thought. When I told him this, he gave me the point above. While I don’t think this is an absolute rule (nor was it really intended as one), it does point out that arguments are being made to advance interests and not merely on principle (or sometimes, not at all on principle). Some factions just need to make certain arguments to get where they’re going. For some people, this is just work. The corollary rule – true believers can be the most difficult (and sometimes the least principled) opponents. Oftentimes, they have crusades rather than goals, and no desire to be pragmatic about anything.
  4. There’s no substitute for a face-to-face meeting. There are several aspects to this epiphany. First, communicating with people is just different face-to-face, rather than on a conference call; it’s more nuanced, more flowing and ultimately, more effective. This is especially true when you are threading your way through difficult conceptual issues. Second, at a face-to-face meeting, there is so much action in the halls, in the cocktail hours, on the buses, over lunch, in corners, in little meeting rooms you never know existed. I was able to be so much more engaged and effective, and I participated in things that I would have just flat-out missed if I were participating remotely. Third (and I hinted at this in epiphany 3), you get to know people as people. You can talk about things that have nothing to do with ICANN or professional life and get a sense of what makes people tick. If things get a little hot in a meeting, you can de-fuse them while walking the length of the conference center. Even seeing people in meeting rooms and watching how they interact and seeing what they do helps you understand them better. I’ve worked on ICANN-related matters for many years without being at a meeting, and my understanding of the issues and the people just took a quantum leap forward in Durban. I’m very much looking forward to ICANN 48.